Citation Nr: 0701716
Decision Date: 01/22/07 Archive Date: 01/25/07
DOCKET NO. 05-12 994 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
L. Crohe, Associate Counsel
INTRODUCTION
The appellant is the surviving spouse of a veteran who had
recognized active guerilla service from February 1943 to
September 1945. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from an August 2004
rating decision by the Manila Regional Office (RO) of the
Department of Veterans Affairs (VA).
FINDINGS OF FACT
1. The veteran died in July 1975 at the age of 63; essential
hypertension due to cerebrovascular accident due to
hemorrhage was certified as the cause of death.
2. Cardiovascular disease, cerebrovascular accident, and
hemorrhage were not manifested in service; brain hemorrhage
was not manifested in the first postservice year; and there
is no competent evidence linking the veteran's death-causing
illnesses to service.
3. The veteran did not have any service-connected
disabilities, and a service connected disability did not
contribute to cause his death.
4. The veteran's certified military service, February 1943
to September 1945, was with a recognized guerilla unit.
CONCLUSION OF LAW
Service connection for the cause of the veteran's death is
not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1310, (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309,
3.312 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
The appellant has been advised of VA's duties to notify and
assist in the development of her claim and notified of the
information and evidence necessary to substantiate the claim
and of the efforts to assist her. In a letter dated in May
2004 (prior to the rating decision on appeal), the August
2004 rating decision, a December 2004 statement of the case
(SOC), and a November 2005 supplemental SOC, the RO notified
the appellant of the information and evidence needed to
substantiate and complete her claim. The letter notified her
of what part of that evidence she was to provide, and what
part VA would attempt to obtain for her. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002).
The Board finds that the appellant was otherwise fully
notified of the need to give to VA any evidence pertaining to
her claim. The May 2004 letter told the appellant to
complete the enclosed consent form or submit, herself,
private medical records that would support her claim, she was
advised to tell VA about any additional information or
evidence she wanted VA to obtain, and she was advised to
submit "any evidence in [her] possession that pertains to
[her] claim."
And while notice fully complying with VA's duties to assist
and notify may not have been provided prior to the rating on
appeal, the Board finds that, here, the lack of such a pre-
decision notice is not prejudicial to the appellant. Proper
notice was provided by the RO prior to the transfer and
certification of the appellant's case to the Board, and the
content of the notice fully complied with the requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The
appellant has been provided with every opportunity to submit
evidence and argument in support of her claim and to respond
to VA notices.
And while the appellant was not notified of the effective
date of an award (See Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), she is not prejudiced by lack of such
notice, as these matters become significant only upon a grant
of service connection, and here the claim for service
connection for the veteran's cause of death is being denied.
She is not prejudiced by any technical notice deficiency that
may have occurred along the way, and no further notice is
required. See Quartuccio v. Principi, 16 Vet. App. 183
(2002).
Regarding the duty to assist, the record includes July 1943
and September 1945 physical examination reports, and a
September 1946 Affidavit for Philippine Army Personnel. In a
July 2004 statement, the appellant indicated that the
terminal treating hospital (Grace Christian Clinic) was
destroyed by a fire and the veteran's attending physician has
died. She indicated that the only medical evidence she could
submit was the veteran's death certificate. All identified
pertinent available records have been obtained. The duty to
assist requirements appear to be substantially met. The
appellant is not prejudiced by the Board's proceeding with
review of the matter on the merits at this point. See Conway
v. Principi, 6 Vet. App. 226 (1994).
II. Factual Background
The veteran died in July 1975, at age 63. His death
certificate lists essential hypertension as the immediate
cause of death due to cerebrovascular accident due to
hemorrhage as the immediate cause of death. No other
significant conditions are listed. During his lifetime he
had not established service connection for any disability.
The veteran's SMR's, including July 1943 and September 1945
physical examination reports, are negative for any
complaints, treatment, or findings for any conditions that
caused or contributed to the veteran's death. Additionally,
on September 1946 Affidavit for Philippine Army Personnel,
the veteran declared that he did not incur any wounds or
illnesses in service.
In a July 2004 statement and on her authorization for release
of medical records, the appellant indicated that the
veteran's terminal hospital records from Grace Christian
Clinic were no longer available as the hospital was burned
down by a fire. She also indicated that the veteran's
attending physician had passed away and traces of the
veteran's medical record could not be made available. The
only medical evidence she could submit was his death
certificate.
III. Criteria and Analysis
To establish service connection for the cause of a veteran's
death, the evidence must show that disability incurred in or
aggravated by service either caused or contributed
substantially or materially to cause death. 38 U.S.C.A. §
1310; 38 C.F.R. § 3.312(a). Service connection will be
granted for a disability if it is shown that the veteran
suffered from such disability and that it resulted from an
injury suffered or disease contracted in line of duty, or
from aggravation in line of duty of a preexisting injury or
disease. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has recognized the Board's "authority to
discount the weight and probity of evidence in light of its
own inherent characteristics and its relationship to other
items of evidence." Madden v. Gober, 125 F.3d 1477, 1481
(Fed. Cir. 1997).
Where a veteran served 90 days or more of continuous, active
military service during a period of war, service connection
can also be granted for certain enumerated chronic diseases,
including brain hemorrhage and cardiovascular disease, if
they become manifest to a degree of 10 percent or more within
one year of separation from active service. This presumption
is rebuttable by affirmative evidence to the contrary.
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case, with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102.
The veteran's death certificate lists the cause of his death
as essential hypertension due to cerebrovascular accident due
to hemorrhage. No other significant conditions are listed on
the death certificate. Here, cardiovascular disease
(hypertension) or brain hemorrhage is not shown by competent
evidence to have been present in service or manifested to a
compensable degree in the first postservice year. There is
no evidence of record that shows that essential hypertension,
cerebrovascular accident, and/or hemorrhage were diagnosed
prior to his death in July 1975, which was many years after
service. Also, there is no competent evidence relating
essential hypertension, cerebrovascular accident, or
hemorrhage to service. Consequently, service connection for
such diseases and disabilities (and ultimately the cause of
the veteran's death) on the basis that they were incurred in
service (or may be presumed to have been incurred in service)
is not warranted.
Inasmuch as the veteran had not established service
connection for any disability, there is no basis for finding
that service connected disability contributed to cause his
death. The appellant maintains that the veteran's death was
due to illnesses caused by service. However, because she is
a layperson, her unsupported contentions in the matter of
medical causality merit little probative value. The Court
has held that "where the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
is required." Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). There is a preponderance of the evidence against
this claim, and it must be denied.
ORDER
Service connection for the cause of the veteran's death is
denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs